The title of this post is also the title of a recent NY Times article that poses the following question: should the individuals depicted in child pornography images be entitled to collect restitution from those who possess (but have not produced) the images?

Underlying this serious policy issue is a series of other questions American courts have yet to resolve. Questions such as:
- Are the children depicted in child pornography “victims” of the crime of possessing such pornography (it being well settled by now that children are victims of the crimes of abusing children and making child pornography)?
- Does possessing child pornography proximately cause any of the harms suffered by the children depicted in the images?
- Has society gone too far in punishing possessors of child pornography?
- If so, is the imposition of a restitution requirement an example of going “too far”?
- If imposition of a restitution requirement is an appropriate punishment in these cases, is joint and several liability the proper approach?

I find it hard to conceive of an argument that the children depicted in child pornography are not “victims” of the crime of possessing said pornography. The secondary harms suffered by sexual abuse victims is well-documented.

The argument that possessing child pornography is not a sufficient proximate cause of the child’s suffering to justify imposition of a restitution requirement is related to the question of whether the child is a “victim” of the crime of possession. Again, I find it difficult to conceive of an argument that there is insufficient proximate harm to justify a restitution award. One young woman has received 800 notices from the federal government in the last five years notifying her that pornographic photos of her as a child have shown up in a new child pornography prosecution. I haven’t seen the evidence purporting to document the harm she suffers from that experience, but I find it very difficult to deny the plausibility of her claim.

I am sympathetic to the argument that society has gone too far in punishing sex offenders generally. I don’t know enough about child pornography cases (the harms suffered by the victims, the recidivism rates of offenders, etc.) to form an opinion about whether society has gone too far in punishing possessors of child pornography, although evidence of increasing downward departures in the imposition of federal sentences in child pornography cases supports the argument that many federal judges think the prison sentences prescribed by the federal sentencing guidelines are too long. In any event, a thorough analysis of this issue is surely beyond the scope of this post.

Even if society has gone too far in punishing possessors of child pornography, however, I am not convinced that imposition of a restitution requirement is an example of this phenomenon. If it is true that child pornography victims suffer harms related to the need for counseling, lost wages, etc., and if these harms are caused in part by the possession of said pornography, it seems to me that restitution is both more beneficial for victims and less onerous for defendants than lengthy prison terms.

If restitution is proper, is joint and several liability the right approach for imposing it? I’m not sure at the moment, but I hope someone will offer an answer in their comments.